In the Supremes

On 30 November 2015, the Supreme Court heard oral argument in Musacchio v. United States, a case of potential interest to military justice practitioners.

There are two questions presented.

(1) Whether the law-of-the-case doctrine requires the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and indictment; and

(2) whether a statute-of-limitations defense not raised at or before trial is reviewable on appeal.

The first question is of more interest than the second. Military practice on motions waivable or otherwise is different from federal courts. Essentially there is a circuit split where two circuits hold the government’s feet to the fire to prove additional “elements” instructed on, but not required by statute, with two circuits reviewing legal sufficiency based only on the statutory elements regardless of the court’s instructions.

[W]hen the jury was ultimately instructed, the judge mistakenly told them that the statute “makes it a crime for a person to intentionally access a protected computer without authorization and” – not “or,” as the statute and the government’s proffered instructions actually said – “exceed authorization.”

The jury convict[ed]. [A]fter a motion for new trial was denied [it was] notice[d] the “and” versus “or” error in the instructions. [The Apppellant of course then sought to argue for dismissal.] The trial court rejected that belated argument, as did the court of appeals, ruling that the statute and the indictment express all the elements the government must prove, and that the mistaken injection of an additional element was both irrelevant and harmless here. Indeed, it redounded to Musacchio’s benefit at trial, by adding to the government’s burden of proof (as Justice Ruth Bader Ginsburg also noted during yesterday’s oral argument).

Mr. Little impliedly predicts Mussachio loses because he does “not perceive any support for Musacchio’s arguments in the transcript of oral argument. Rather, there were repeated expressions of non-understanding or outright rejection.”